In re T.A. , 378 Ill. App. 3d 1083 ( 2008 )

NO. 4-07-0785 Filed 2/15/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: T.A., Ta.A., and J.A., ) Appeal from
Minors, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Champaign County
Petitioner-Appellee, ) No. 06JA20
v. )
MICHAEL AMOS, ) Honorable
Respondent-Appellant. ) Holly F. Clemons,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In August 2007, the trial court entered a dispositional
order finding J.A., born January 26, 2007, neglected. The court
granted custody and guardianship of J.A. to the guardianship
administrator of the Illinois Department of Children and Family
Services (DCFS). J.A.'s father, respondent Michael Amos,
appeals, arguing the matter should be remanded for a
determination of whether J.A. is an Indian child under the Indian
Child Welfare Act of 1978 (Act) (25 U.S.C. §§1901 through 1923
(2000)). We disagree and affirm.
I. BACKGROUND
In March 2006, prior to J.A.'s birth, the State filed a
petition alleging that J.A.'s siblings, T.A., born July 16, 2003,
and Ta.A., born August 2, 2005, were neglected minors because
their environment was injurious to their welfare while under the
care of their mother, Theresa Jones, and their father, respondent
(705 ILCS 405/2-3(1)(b) (West 2006)). The children's mother,
Theresa, is not a party to this appeal.
In August 2006, the trial court found T.A. and Ta.A.
neglected. Thereafter, DCFS filed a dispositional report.
According to the report, Theresa reported she was of African-
American and Native American descent. In September 2006, the
court entered a dispositional order adjudicating T.A. and Ta.A.
neglected, making T.A. and Ta.A. wards of the court, and awarding
custody and guardianship to DCFS. However, the record indicates
that by January 2007, custody of T.A. and Ta.A. had been returned
to Theresa but guardianship remained with DCFS.
On January 26, 2007, J.A. was born. In March 2007, the
State filed a supplemental petition for adjudication of wardship.
The petition alleged that J.A. was a neglected minor because (1)
Theresa did not provide the medical care recognized under state
law as being necessary for the child's well-being (705 ILCS
405/2-3(1)(a))(West 2006)) (count I); and (2) an injurious
environment exposed J.A. to the risk of physical harm when J.A.
lived with Theresa (705 ILCS 405/2-3(1)(b))(West 2006)) (count
II). Apparently, the allegations were limited to Theresa because
respondent was incarcerated. The petition also contained
allegations regarding T.A. and Ta.A., but those allegations were
later stricken because T.A. and Ta.A. had previously been
adjudicated neglected and made wards of the court. In March
2007, the trial court entered a temporary custody order awarding
temporary custody of J.A. to the guardianship administrator of
DCFS.
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In May 2007, the trial court held the adjudicatory
hearing. Theresa stipulated to count I (failure to provide
necessary medical care). Respondent waived the adjudicatory
hearing. In June 2007, the court entered a written adjudicatory
order finding J.A. neglected based on count I and dismissing
count II (injurious environment exposed J.A. to the risk of
physical harm).
On June 20, 2007, DCFS filed a dispositional report
prepared by Catholic Charities. The report noted that Theresa
stated she was of African-American and Native-American descent.
The report also provided as follows:
"This worker has contacted the *** Act ***
Liaison at DCFS with this information so they
can determine if the [Act's] laws would apply
in [Theresa's] case."
The report indicated that further information would be provided
when it became available. Additionally, the report noted that
respondent had been paroled from prison in May 2007.
The dispositional hearing was scheduled for June 21,
2007. The record does not contain a transcript of this hearing.
According to the June 21, 2007, docket entry, the trial court
continued the matter until July 30, 2007.
On July 26, 2007, DCFS filed an addendum to the
dispositional report prepared by Catholic Charities. The
addendum provided that the American Indian Child Welfare Advocacy
Program was working with Catholic Charities "to research the
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eligibility of T.A., Ta.A., and J.A. as being with one of the
three Cherokee Nations within the United States." The report
noted that the process was lengthy, and the date the process
would be completed was unknown. The report indicated that
Theresa had stated her understanding that none of her family
members were registered with any tribes.
On July 30, 2007, the trial court held the
dispositional hearing. The following discussion ensued:
"THE COURT: *** Counsel, one of the
reasons we had set this over was developments
with respect to [the Act]. Apparently we
don't have any further information at this
juncture. Ms. Geller, as to how you wish to
proceed.
MS. GELLER [(assistant State's
Attorney)]: Your honor, in light of the fact
that there is no--nobody's been able to
identify a tribe or nobody is--seems to know
whether or not they are, in fact, registered
with a tribe, I don't think [the Act] is
going to apply in this situation and the
State would be ready to proceed.
THE COURT: Mr. Fitton.
MR. FITTON [(Theresa's attorney)]: Your
honor, at this point, I don't have anymore to
add than what was in the most recent report
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received July 26th. Just that the Catholic
Charities is researching eligibility to three
different Cherokee nations. So I don't have
anything more to add than that.
THE COURT: All right. Mr. Appleman.
MR. APPLEMAN [(respondent's attorney)]:
Judge, I think at this point we should
proceed--yeah, I'll leave it at that.
THE COURT: Ms. Geller.
MS. GELLER: And your Honor, as I
understand it, if each of the [r]espondent
parents were to, I believe under [the Act],
the only reason in which a tribe would get
involved is if the tribe wanted to get
involved, and/or if the parents wanted the
tribe to be involved. I think the parents
might be able to waive the involvement of the
tribe, and therefore, we could continue to
the dispositional hearing without that
concern.
THE COURT: I think if the tribe wants to
intervene, they can intervene, if a tribe is
identified.
MS. GELLER: I believe the tribe has the
right to intervene; however, I was under the
impression from the last time we researched
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this issue, that if the [r]espondent--if one
of the [r]espondent parents objected and
wanted this matter to remain in this circuit
court, that it [sic] would have to do so.
I'm not saying that with significant
authority, that's just the thing that I
recall, we might have discussed the last time
this issue arose.
THE COURT: Ms. Pennacchi, as to how
would you wish to proceed.
MS. PENNACCHI: We can proceed today.
THE COURT: At this juncture, if nobody
has any objection, I'll proceed today. And if
necessary, at some future point, the [c]ourt
will vacate its orders if it becomes
necessary."
At the conclusion of the hearing, the trial court found
J.A. neglected and made her a ward of the court. The court
placed custody and guardianship of J.A. with the guardianship
administrator of DCFS. The court provided that a written
dispositional order would follow. On August 23, 2007, the trial
court entered the written dispositional order.
This appeal followed.
II. ANALYSIS
Respondent argues that the trial court should have made
a determination of whether J.A. was an Indian child. Respondent
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also argues that because the court knew or should have known that
J.A. was an Indian child, notice should have been given in
accordance with the Act. Respondent asks this court to
invalidate the court's order and remand for a determination of
whether J.A. is an Indian child.
A. Standard of Review
Whether the trial court was required, under the facts
of this case, to make a determination on the record as to the
applicability of the Act or to give notice under the Act involves
issues of statutory interpretation and, as such, this court
reviews the issues de novo. See, e.g., In re C.N., 196 Ill. 2d
181, 203, 752 N.E.2d 1030, 1043 (2001) (involving whether the
trial court was required to make a determination of whether the
minor was an Indian child); In re IEM, 233 Mich. App. 438, 443,
592 N.W.2d 751, 755 (1999) (involving whether the notice
requirements were satisfied).
B. The Purpose of the Act
"The Act was adopted to respond to a crisis occurring
in Indian tribes in which large numbers of Indian children were
being separated from their families and placed in non-Indian
homes." In re Stiarwalt, 190 Ill. App. 3d 547, 550, 546 N.E.2d
44, 47 (1989), citing Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 32, 104 L. Ed. 2d 29, 36, 109 S. Ct.
1597, 1599-1600 (1989). This deprived the children of their
Indian heritage and threatened "the tribes' ability to function
as an autonomous community." Stiarwalt, 190 Ill. App. 3d at 551,
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546 N.E.2d at 47, citing Holyfield, 490 U.S. at 35-36, 104 L. Ed.
2d at 38, 109 S. Ct. at 1061.
The Act governs child-custody proceedings involving
Indian children, including foster-care placements, terminations
of parental rights, and adoptive placements; and it provides
minimum federal standards for the removal of Indian children from
their families. See 25 U.S.C. §§1902, 1903 (2000). Under the
Act, tribal courts are granted exclusive jurisdiction over a
child-custody proceeding involving an Indian child who resides or
is domiciled within the tribe's reservation or who is a ward of a
tribal court. 25 U.S.C. §1911(a) (2000). State courts and
tribal courts have concurrent jurisdiction over proceedings
involving an Indian child who is not domiciled or residing within
the reservation of the Indian child's tribe. 25 U.S.C. §1911(b)
(2000). In the case of concurrent jurisdiction, the state court
must transfer the proceedings to the tribal court upon the
petition of either parent, an Indian custodian, or the Indian
child's tribe absent good cause to the contrary, objection by
either parent, or declination of jurisdiction by the tribal
court. 25 U.S.C. §1911(b) (2000).
If the child is an Indian child, section 1912(e) of the
Act provides that no foster-care placement may be ordered absent
a determination, supported by both conclusive evidence and
qualified expert testimony, that the continued custody of the
child by the parent or Indian custodian is likely to result in
serious physical or emotional damage to the Indian child. 25
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U.S.C. §§1912(e), (f) (2000). Additionally, an Indian child
shall be placed in the least-restrictive setting, and preference
of placement shall be with the following:
"(i) a member of the Indian child's
extended family;
(ii) a foster home licensed, approved,
or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or
approved by an authorized non-Indian
licensing authority; or
(iv) an institution for children
approved by an Indian tribe or operated by an
Indian organization which has a program
suitable to meet the Indian child's needs."
25 U.S.C. §1915(b) (2000).
Finally, the Act requires that the party seeking a
foster-care placement or termination of parental rights satisfy
the trial court (1) that active efforts had been made to provide
remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family but (2) that those efforts were
unsuccessful. 25 U.S.C. §1912(d) (2000).
C. Trial Court Was Not Required To Make a
Determination on the Record Whether
J.A. Was an Indian Child
Respondent argues the trial court erred by failing to
make a determination on the record whether J.A. was an Indian
child. The State argues respondent forfeited this argument by
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failing to raise it in the trial court.
Whether any provisions of the Act can be forfeited is
unclear. Clearly, the notice provisions of the Act are intended
to serve the interests of the Indian tribes and cannot be
forfeited by a parent. See In re J.O., 170 P.3d 840, 842 (Colo.
App. 2007) (providing that the notice requirements cannot be
forfeited, and the issue may be raised for the first time on
appeal). However, a parent may be able to affirmatively waive
application of the procedural requirements of the Act, such as
the expert-testimony requirement, so long as the waiver is
knowingly and voluntarily made. See In re Jennifer A., 103 Cal.
App. 4th 692, 708, 127 Cal. Rptr. 2d 54, 65 (2002) (citing
California Court Rule 1439(i) and finding that a parent could
waive application of the Act's procedural requirements so long as
the waiver is knowing and voluntary); see also, e.g., In re Riva
M., 235 Cal. App. 3d 403, 412, 286 Cal. Rptr. 592, 597 (1991)
(finding the father forfeited any error in the use of the clear-
and-convincing standard and the failure to require expert
testimony by not objecting). The State does not cite, nor does
this court find, any case addressing whether a party can forfeit
the trial court's obligation to determine whether a child is an
Indian child. But see C.N., 196 Ill. 2d at 205, 752 N.E.2d at
1044 (addressing whether the trial court erred by failing to
determine whether the child was an Indian child even though the
respondent father did not raise the applicability of the Act in
the trial court and concluding that the court did not err).
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Regardless of forfeiture, however, the trial court in
this case was not required to make a determination on the record
whether J.A. was an Indian child. The Act defines an "Indian
child" as follows:
"[A]ny unmarried person who is under age
eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for
membership in an Indian tribe and is the
biological child of a member of an Indian
tribe[.]" 25 U.S.C. §1903(4) (2000).
While the definition speaks in terms of the child being a
"member" of a tribe or the biological child of a "member" of a
tribe, the absence of evidence of the child's or child's parent's
enrollment alone may not be determinative of whether the child or
parent is a member of a tribe. In re the Termination of Parental
Rights to Arianna R.G., 2003 WI 11 ¶17, 259 Wis. 2d 563, 575-76,
657 N.W.2d 363, 369 (2003) (noting that when the potential tribe
is unidentified, the criteria for membership may be unknown, and
therefore lack of enrollment in the tribe does not necessarily
preclude a person from being a member of a tribe). Tribes use a
wide range of membership criteria, and some tribes may
automatically include a person as a member if the person is a
descendant of a tribe member. Arianna R.G., 2003 WI 11 ¶17 &
n.13, 259 Wis. 2d at 575 & n.13, 657 N.W.2d at 369 & n.13. The
party asserting the applicability of the Act has the burden of
producing sufficient evidence for the court to determine if the
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child is an Indian child. C.N., 196 Ill. 2d at 205, N.E.2d at
1044.
The Bureau of Indian Affairs has promulgated nonbinding
guidelines to assist the state courts with applying the Act. See
Guidelines for State Courts: Indian Child Custody Proceedings, 44
Fed. Reg. 67,584 (1979) (hereinafter Guidelines) (noting that the
regulations were not intended to have binding legislative
effect). These Guidelines provide, in relevant part, as follows:
"When a state court has reason to
believe a child involved in a child custody
proceeding is an Indian, the court shall seek
verification of the child's status from
either the Bureau of Indian Affairs or the
child's tribe." Guidelines, 44 Fed. Reg. at
67,586, par. B.1(a).
The Guidelines also provide circumstances for when the state
court should have reason to believe a child is an Indian child.
These circumstances include when (1) a party, tribe, or agency
informs the court that the child is an Indian child; (2) a state-
licensed agency involved in child-protection services discovers
information suggesting the child is an Indian child; (3) the
child gives the court reason to believe the child is an Indian
child; (4) the residence of the child, biological parent, or
Indian custodian is known to be a predominantly Indian community;
and (5) an officer of the court involved in the proceeding has
knowledge the child may be an Indian child. See Guidelines, 44
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Fed. Reg. at 67,586, par. B.1(i) through (v).
Using, in part, those guidelines, the Illinois Supreme
Court, in C.N., held that the respondent father's unsubstantiated
statements regarding his alleged Indian heritage were
insufficient to implicate the Act. C.N., 196 Ill. 2d at 206, 752
N.E.2d at 1044. In C.N., the allegations of Indian heritage in
the record included (1) the DCFS caseworker's testimony that the
respondent father had told her he was "part of a Native American
tribe," asked her to pursue whether his family was registered,
and that she did so; and (2) a psychological assessment of
respondent father noted that the respondent father identified
himself as the son of a "'full-blooded Blackfoot Indian'"; the
report also noted that while respondent claimed to be Native
American, the caseworker provided information indicating, the
claim was not true. C.N., 196 Ill. 2d at 205, 752 N.E.2d at
1044. The supreme court held that the evidence was insufficient
to implicate the Act, and the trial court did not err by failing
to make a determination on the record regarding the applicability
of the Act. C.N., 196 Ill. 2d at 206, 752 N.E.2d at 1044.
Similarly here, the record contains only the two DCFS
reports and addendum indicating that Theresa stated "she is of
African[-]American and Native American descent." The addendum
also stated, "[Theresa] has stated that it is her understanding
that none of her family members are registered with any tribes."
Such statements were insufficient to require the trial court to
make a determination on the record whether J.A. was an Indian
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child. No evidence or testimony suggests that either Theresa or
J.A. was even eligible for membership in a tribe. See, e.g., In
re H.D., 343 Ill. App. 3d 483, 489, 797 N.E.2d 1112, 1117-18
(2003) (finding that where neither parent presented evidence to
support a finding that the child was an Indian child, the Act did
not apply, and the trial court erred by assuming the Act applied
without establishing that the child was an Indian child); In re
M.S., 302 Ill. App. 3d 998, 1001, 706 N.E.2d 524, 527 (1999)
(finding the trial court properly exercised jurisdiction in
termination of respondent mother’s parental rights as to two
children; trial court concluded respondent’s alleged Native
American heritage was not an issue; the mother had interposed the
bare allegation but failed to provide any evidence that either
she or her children were eligible for membership in any
particular tribe; respondent’s caseworker contacted several
Cherokee tribes but obtained nothing to substantiate her claim);
In re M.N.W., 577 N.W.2d 874, 877 (Iowa App. 1998)) (finding an
"unsubstantiated" statement made by the caseworker that the
child's mother indicated that the child's father was part Native
American was insufficient to require the trial court to determine
whether the child was Indian).
D. The State Was Not Required to Send Notice to the Tribe
or Secretary of the Interior
Respondent also argues that section 1912(a) of the Act
was violated because notice of the pending action was not sent to
the Cherokee Nations. As previously noted, the notice
requirements cannot be forfeited by the parents' failure to raise
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the issue in the trial court. See J.O., 170 P.3d at 842.
The Act provides that if the trial court "knows or has
reason to know" that an Indian child is involved in an
involuntary custody proceeding, the party seeking the foster-care
placement of the Indian child must notify the parent or Indian
custodian and the Indian child's tribe by registered mail of the
pending proceeding and their right to intervene. 25 U.S.C.
§1912(a) (2000). If the identity of the child's tribe cannot be
determined, notice shall be given to the Secretary of the
Interior. 25 U.S.C. §§1912(a), 1903 (2000). Any parent or
Indian custodian from whom custody an Indian child was removed or
the Indian child's tribe may petition any court of competent
jurisdiction to invalidate the custody removal upon a showing
that the notice provisions of the Act were violated. 25 U.S.C.
§1914 (2000); see also J.O., 170 P.3d at 842 (holding that a non-
Indian biological parent has standing to argue that the notice
requirements of the Act were not followed).
The Indian status of a child need not be certain before
the Act's notice provisions are triggered. Notice is required
whenever the trial court knows or has reason to know the child is
an Indian child. See 25 U.S.C. §1912(a) (2000); In re Kahlen W.,
233 Cal. App. 3d 1414, 1420, 285 Cal. Rptr. 507, 511-12 (1991)
(wherein the respondent mother asserted she was a member of an
Indian tribe and asked for additional time to await the tribe's
determination). Specifically, Indian tribes, functioning as
autonomous communities, have a separate interest in the potential
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Indian child welfare proceedings from the parties involved. In
re M.C.P., 153 Vt. 275, 285, 571 A.2d 627, 632-33 (1989) (finding
the trial court erred by not providing notice to the Mohawk
Indian Tribe where the minor's father's membership in the tribe
gave the trial court reason to know the minor may be an Indian
child).
This court must determine whether the trial court had a
"reason to know" J.A. was an Indian child, thereby triggering the
notice requirements of the Act. No Illinois case has decided
what constitutes a "reason to know" that a child is an Indian
child. In C.N., the supreme court specifically noted that the
respondent father did not argue that the State violated the
notice provisions. C.N., 196 Ill. 2d at 207, 752 N.E.2d at 1045.
Looking at other jurisdictions, we note some courts
require only a mere suspicion that a child may be an Indian child
before the notice requirement is triggered. See In re Antoinette
S., 104 Cal. App. 4th 1401, 1407-08, 129 Cal. Rptr. 2d 15, 20-21
(2002) (wherein the father's bare assertion that he believed his
deceased grandparents might have Indian ancestry was sufficient
to trigger the notice requirements); In re T.M., 245 Mich. App.
181, 187, 628 N.W.2d 570, 573 (2001) (finding the notice
provisions triggered where the respondent testified that although
she was not a member of a tribe, she was of Native American
heritage and believed she had Cherokee ancestry). This court
agrees, however, with those cases holding that the mere mention
of Indian heritage does not give a trial court reason to know
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that the child is an Indian child. See Arianna R.G., 2003 WI 11
¶¶29 through 36, 259 Wis. 2d at 580-83, 657 N.W.2d at 371-73
(finding the notice provisions were not triggered where the
father did not assert his children were members of or eligible
for membership in a federally recognized tribe or the biological
children of a tribe member); In re A.L., 2001 ND 59, 63, 623
N.W.2d 418, 422 (2001) (finding that the respondent mother's
counsel raising unsupported and vague assertions during a
termination hearing about the child's potential eligibility for
enrollment in a specific tribe was insufficient to invoke the
notice requirement of the Act); In re Johanson, 156 Mich. App.
608, 613, 402 N.W.2d 13, 15-16 (1986) (where respondent mother
made several references to the Saginaw Tribe of Chippewa Indians
but stated that she was not a member of the tribe, the court held
that it did not know or have reason to know that the child was an
Indian child); In re Guardianship of J.O., 327 N.J. Super. 304,
316, 743 A.2d 341, 347 (2000) (finding that vague and casual
references to Indian ancestry made by respondent mother's counsel
were insufficient to trigger the Act's notice requirement).
Membership in a tribe is not easily determined because membership
depends upon each tribe's particular rules. However, where the
record contains no suggestion that the child is an Indian child,
that is, a member of a tribe or the biological child of a member
of a tribe, the notice requirements are not triggered.
In this case, the only "evidence" presented consisted
of Theresa's statements to the caseworker that she was of Native
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American descent and that, to her knowledge, none of her family
members were registered with any tribes. These bare assertions
of Indian heritage, without any suggestion that either J.A.,
Theresa, or any of Theresa's relatives were members of a tribe or
possibly eligible for membership in a tribe, did not give the
trial court reason to know that J.A. was an "Indian child" as
that term is defined in the Act.
DCFS properly sought additional information regarding
Theresa's claim by attempting to contact the three Cherokee
nation tribes. After an initial continuance of the dispositional
hearing, the parties all agreed to proceed with the understanding
that any order could be vacated if information became available
showing J.A might fall within the Act's definition of "Indian
child." By agreeing to continue, the parties, including
respondent, implicitly recognized that the record afforded
insufficient evidence to trigger the notice requirements of the
Act. See Guardianship of J.O., 327 N.J. Super. at 317, 743 A.2d
at 347 (holding that "vague and casual reference to Indian
ancestry" did not trigger the notice requirements, particularly
in light of the parties' failure to provide the court with any
information suggesting Indian ancestry after being afforded the
opportunity to do so); see also, e.g., In re Z.H., 740 N.W.2d
648, 654 (Iowa Ct. 2007)) (finding no "reason to believe" child
was an "Indian child," and therefore no need to follow the notice
requirements given (1) the timing of the respondent's claim--on
the eve of termination, (2) his previous denial of Native
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American ancestry, and (3) his inability after a continuance to
provide the court with any specific information as to why he now
believed he was of Native American ancestry). Given the
unsubstantiated and vague evidence in this case, the trial court
did not have "reason to know" that J.A. may be an Indian child.
As such, the notice provisions of the Act were not triggered.
If, at some later point in response to DCFS's inquiry,
the Cherokee nation indicates the possibility that J.A. is
eligible for membership and therefore may be an "Indian child" as
defined in the Act, or if other evidence comes to light
suggesting J.A. is an Indian child, any parent, Indian custodian,
or the tribe may petition any court of competent jurisdiction to
invalidate the dispositional order upon showing that section 1912
of the Act was violated. See 25 U.S.C. §1914 (2000); Kahlen W.,
233 Cal. App. 3d at 1424, 285 Cal. Rptr. at 513 (where the
respondent did not allege she was a member of the Miwok Tribe
until after the proceedings had already begun, the court held
that notice is mandatory regardless of how late in the proceeding
a child's potential eligibility for membership in the tribe is
uncovered). However, on this record, and in light of the current
lack of evidence pertaining to J.A.'s status as an Indian child,
this court will not invalidate the trial court's dispositional
ruling.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
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Affirmed.
APPLETON, P.J., and TURNER, J. concur.
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